All 50 states, the District of Columbia, and the federal government impose criminal liability on correctional facility staff who have sexual contact with people in their custody. These laws recognize that any sexual activity between detainees and detention facility staff, with or without the use of force, is unlawful because of the inherent power imbalance when people are in custody. Yet, one immigration detention center is trying to avoid responsibility for sexual violence within its walls by arguing that the detainee “consented” to sexual abuse.

E.D., an asylum-seeker and domestic violence survivor from Honduras, was sexually assaulted by an employee while she was detained with her 3-year-old child at the Berks Family Residential Center in Pennsylvania. At the time of the assault, E.D. was 19 years old.

She filed suit against the detention center and its staff for their failure to protect her from sexual violence, even though they were aware of the risk. The record in the case, E.D. v. Sharkey, shows that her assailant coerced and threatened her, including with possible deportation, while the defendants stood by and made jokes.

Although the employee pled guilty to criminal institutional sexual assault under Pennsylvania law, the defendants contend that they should not be liable for any constitutional violations. Their argument rests in part on their assessment that the sexual abuse was “consensual” and that they should be held to a different standard because the Berks Family Residential Center is an immigration detention facility rather than a jail or prison.

The ACLU, ACLU of Pennsylvania, and partner organizations filed an amicus brief this week supporting E.D., explaining that officials wield such tremendous control over the lives of those in their custody, including through coercion and exploitation, that consent to sexual contact cannot be freely given in these circumstances. We also discuss how sexual violence in custodial settings is a serious and pervasive issue, including in immigration detention. For many years, the ACLU, various advocacy groups, and immigrants themselves have reported on the unsafe conditions in immigration detention, including sexual violence and the retaliation that detained immigrants face when they decide to come forward with these violations.

A recent investigation into sexual abuse in immigration detention found that there were 1,448 allegations of sexual abuse filed with ICE between 2012 and March 2018. In 2017 alone, there were 237 allegations of sexual abuse in immigration detention facilities.

Other reports include a 2014 complaint documenting widespread allegations of sexual harassment at the Karnes County Residential Center, where more than 500 women were detained with their children. In 2017, advocates filed a complaint on behalf of eight immigrants who recounted their experiences of sexual violence while detained in various ICE detention facilities across the country.

The Government Accountability Office reported in 2013 that officials at immigration prisons and jails failed to report 40 percent of sexual abuse allegations to the ICE headquarters. After looking at 10 different detention centers and analyzing over 70 cases of sexual abuse, researchers found that only 7 percent of 215 allegations of sexual assault in immigration detention facilities from 2009 to 2013 were substantiated, calling into question the thoroughness of investigations as well as reporting and oversight mechanisms.

Sexual violence impacts immigrants across federal agencies that are charged with immigrant detention. Most recently in Arizona, the state’s Department of Health Services, which licenses facilities that are used by the U.S. Department of Health and Human Service’s Office of Refugee Resettlement to detain migrant children, moved to revoke the license of Southwest Key, a nonprofit contractor that rakes in about a half a billion dollars to detain migrant children in facilities across the country. The state moved to revoke the group’s license because Southwest Key failed to comply with required employee background checks. At least three former employees have been arrested for sexually abusing migrant children. One was convicted, and one of the facilities was closed down following allegations of staff abusing children.

These are not isolated cases. They clearly show that officials are not doing enough to detect and respond to incidents of sexual abuse in immigration detention. The result is that immigrants are put at serious risk for sexual violence while they are detained.

The Prison Rape Elimination Act was passed by Congress in 2003 to protect against sexual assault in prisons and jails across the country. It took the Department of Homeland Security until 2014 to finalize regulations implementing PREA. Even with those regulations in place, DHS PREA standards do not protect immigrants in all detention facilities because the agency has taken the position that those requirements can only apply when the agency enters into new contracts or renews or modifies old ones.

Rather than meaningfully addressing these endemic problems in immigration detention, the Trump administration continues to aggressively target immigrants and asylum seekers by stripping away legal protections, ramping up enforcement, and expanding immigration detention. E.D.’s case highlights the real need for greater protections against sexual abuse and more robust oversight and accountability measures in immigration detention, not less.

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Anonymous

This is what one gets when independent contractors are able to run the asylum. We, the people, pay the financial bill through taxes, independent contractors get rich, and then they are allowed to plead "Not guilty" and get away with crimes against humanity. This is a deplorable practice and should be abandoned as a complete failure to protect the most vulnerable.

Anonymous

Then I suppose it would be perfectly acceptable to rape and kill the owners/private investors of the ICE concentration camps that are breaking the law to begin with. Right? I mean, I don't see a problem with that... do you?

Tamara Dahl

Anonymous

In just two years we have witnessed sex perverts take over the prisons where women and children includeding babies of sylum seekers are terrorized here in the United States of America. What a sick horrific country we have become in just two years thanks to a monster who led us there.

Anonymous

This story is insane - meaning, I can't believe sexual assault is occurring - and on those you are supposed to protect. These are people seeking asylum. Where is the compassion??? And even more crazy that ICE thinks it should get a pass because it's a detention center - not a jail? 1- Sexual Assault is unlawful regardless of where you are 2- This is a jail. The detentes are confined against their will, they are on trial, .. and looks nothing short of a prison. (Does this look like a cozy place to raise your kids???) What is wrong with people?

Kyle Hanson

What is up with all this name calling from all these "Anonymous"? All of you are warped, twisted people who appear to not know anything about what they speak. As stated in the story, it is considered a crime in federal and state jurisdictions to engage in such behavior with any inmate. They DO prosecute staff offenders (as well as publicly humiliate them as they escort them under guard from the institutions. I personally was incarcerated for nearly 10 years in federal custody where i observed numerous walks of shame of female staff members who were caught in the act. The inmate was ushered to the hole and she had a couple minutes to gather her things, because she was NEVER coming back thru the gate.Many were married, a couple of the spouses actually worked at the Institution as well. After several months in the hole the inmate would be transferred to another Institution for disciplinary reasons and to ensure their safety. Now, Seriously, should someone who is NOT physically forced to engage in sex with someone in authority stand to receive millions in a law suit ? Because, as I said, I know of plenty of US born persons who were so engaged!!! I believe y'all bleeding hearts need to just shut the hell up and listen then think about it, And THEN post these ridiculous comments. i say this because they ARE ridiculous,